Commissioner of Social Services ex rel. Queisser v. Abizeid

168 Misc. 2d 1005, 640 N.Y.S.2d 990, 1996 N.Y. Misc. LEXIS 104
CourtNew York City Family Court
DecidedMarch 19, 1996
StatusPublished
Cited by3 cases

This text of 168 Misc. 2d 1005 (Commissioner of Social Services ex rel. Queisser v. Abizeid) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commissioner of Social Services ex rel. Queisser v. Abizeid, 168 Misc. 2d 1005, 640 N.Y.S.2d 990, 1996 N.Y. Misc. LEXIS 104 (N.Y. Super. Ct. 1996).

Opinion

OPINION OF THE COURT

Jerome S. Medowar, J.

In this paternity proceeding, the court is faced with a fascinating issue of statutory construction of apparent first impression. At issue is whether results of a blood genetic [1007]*1007marker test administered to a putative father prior to his death in a paternity proceeding relating to a prior child of the same parties sufficiently supports petitioner’s standing under Family Court Act § 519 (c) to commence a new paternity proceeding involving another child of the same parties. Consistent with principles of statutory construction and in furtherance of the child’s welfare and public policy, this court answers the question in the affirmative.

On June 24, 1991, assignor Jennifer A. Queisser (Mother) gave birth out of wedlock to a baby boy named Walter S. Queisser in East Meadow, Nassau County, New York. Shortly after the birth, she and the child began receiving public financial assistance from the Nassau County Department of Social Services. Petitioner herein, Commissioner of Social Services, subsequently instituted a paternity proceeding on behalf of Mother against respondent Souheil Abizeid to declare him Walter’s father and to obtain indemnification for child support payments. Mother alleged in the petition that she had had sexual intercourse with respondent on several occasions from 1983 to 1991, during the time including the critical period of conception. Petitioner was looking for child support apparently based on the fact that respondent was the owner of a gas station in Massapequa, New York.

On the appearance date, January 29, 1992, Hearing Examiner Patricia Bannon ordered the parties to submit to blood genetic marker tests to determine whether respondent could be excluded as being Walter’s father. Following the administering and analysis of the blood genetic marker tests in the form of Human Leukocyte Antigen (HLA) tests or blood grouping tests, respondent could not be excluded as Walter’s father due to a 99.83% probability of paternity as compared to an untested random man of similar ethnic background. Based on those results and respondent’s voluntarily and intelligently made admission of paternity, an order of filiation was entered on May 21, 1992 by Hearing Examiner Bannon, declaring respondent as Walter’s father and ordering him to temporarily pay a monthly amount of $25 towards child support. The temporary order of support was made final on June 17, 1992. Respondent apparently complied with that support order for several years, while continuing to have a relationship with Mother.

On October 10, 1994, Mother again gave birth out of wedlock to another baby boy, Richard S. Queisser, the subject child of this proceeding. Following the birth, respondent’s health deteriorated until he was finally diagnosed with cancer. Ten [1008]*1008months after the onset of that illness, on September 5, 1995, respondent died in West Islip, New York, at the age of 49 survived by his wife, movant Afaf Abizeid, and other children.

Notwithstanding respondent’s death, and based upon Mother’s status as a recipient of public assistance, petitioner Commissioner commenced the instant proceeding by filing a paternity petition, as assignee and on behalf of Mother, against respondent decedent seeking a posthumous declaration of paternity and an award of child support pursuant to Family Court Act § 519. In support thereof, Mother affirmed that from 1983 until December 1994 she had had exclusive sexual intercourse with respondent and, as a result, she became pregnant with Richard. On the appearance day, Nassau County Family Court appointed counsel to represent Mother, as an indigent pursuant to County Law article 18-B, and a Law Guardian to protect Richard’s interests.

In opposition to the paternity petition, Ms. Abizeid, through her privately retained counsel, moves to dismiss the petition, presumably pursuant to CPLR 3211 (10), relying on Family Court Act § 519; CPLR 1001 and 1015. In responding papers, Mother cross-moves for an order: (1) amending the petition’s caption to include Ms. Abizeid as a respondent; (2) directing blood genetic tests of Mother and the child; (3) directing that the blood genetic marker tests results previously performed on respondent be made available for this proceeding; and (4) directing a pretrial standing hearing pursuant to Family Court Act § 519 (d) based on several allegations by Mother that respondent openly and notoriously acknowledged his paternity of Richard.

Following his receipt of Ms. Abizeid’s motion, petitioner also cross-moves for an order: (1) denying Ms. Abizeid’s motion to dismiss; (2) amending the papers to include Ms. Abizeid as a respondent in this proceeding; (3) directing that the results of respondent’s prior tests be made available to this proceeding and the Deputy County Attorney; and (4) directing blood genetic marker tests of Mother and Richard. Ms. Abizeid’s motion and the other parties’ cross motions are consolidated for purposes of this decision and order.

At common law, abatement, the complete extinguishment of a cause of action, was triggered by the death of a party in whose favor or against whom the cause of action existed (see generally, 1 NY Jur 2d, Actions, § 74). Under modern practice, however, statutory provisions and case law generally prevent the complete abatement of most causes of action (see, Siegel, [1009]*1009NY Frac § 185, at 279; 1 NY Jur 2d, Actions, §§ 90-93). In point is the statute at issue in this proceeding, Family Court Act § 519, which grants standing to a petitioner to commence a postdeath paternity proceeding as follows:

"If, at any time before or after a petition is filed, the putative father dies * * * neither the proceeding nor the right to commence the proceeding shall necessarily abate but may be commenced or continued by any of the persons authorized by this article to commence a paternity proceeding where:
"(a) the putative father was the petitioner in the paternity proceeding; or,
"(b) the putative father acknowledged paternity of the child in open court; or,
"(c) a blood genetic marker test had been administered to the putative father prior to his death; or,
"(d) the putative father has openly and notoriously acknowledged the child as his own.”

A paucity of precedent exists interpreting this statute (see, e.g., Matter of Anne R. v Estate of Francis C., 167 Misc 2d 343; Matter of Janis, 157 Misc 2d 999, affd 210 AD2d 101; Matter of Commissioner of Social Servs. v William C., 147 Misc 2d 974).

Paternity statutes, such as Family Court Act § 519, are to be given a liberal construction in order to protect the welfare of the child by not unduly suspending the question of parentage (see, Schaschlo v Taishoff, 2 NY2d 408; see also, Matter of Sondra S. v Jay O., 126 Misc 2d 322, 323; Matter of Kordek v Wood, 90 AD2d 209, 210). And, when faced with statutory language which appears unambiguous, as here, a court must construe the language according to its natural and most obvious meaning while taking into consideration "the mischief sought to be remedied by the new legislation, and * * * construing] the act in question so as to suppress the evil and advance the remedy” (McKinney’s Cons Laws of NY, Book 1, Statutes § 95; §§ 94, 96).

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Bluebook (online)
168 Misc. 2d 1005, 640 N.Y.S.2d 990, 1996 N.Y. Misc. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-social-services-ex-rel-queisser-v-abizeid-nycfamct-1996.